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International Criminal Law
University of Michigan School of Law
Starr, Sonja B.

INTERNATIONAL CRIMINAL LAW
 
Guidance to Reading Fact Scenario
 
ID Incidents
Ask: Did incidents amount to a crime – CAH or Genocide?
Is (politician, or whomever else is the specific defendant) liable?
Analyze liability incident by incident
 
Structure of Answer
 
Were Crimes Against Humanity Committed?
Chapeau Elements
                                                               i.      Define chapeau requirements for CAH (widespread or systematic attack directed against civilian population, with knowledge of the attack)
                                                             ii.      Here, the broader attack is the mass expulsion campaign directed against Librons and Taurons; the specific attacks at Alpha and Beta were connected to that broader attack and the perpetrators surely knew of that connection.
                                                           iii.      There appears to have been a state policy supporting the expulsion campaign (CP and gov’t ties); CP also probably counts as an “organization”
                                                           iv.      Attack was widespread and systematic
                                                             v.      The targeted population was generally civilian; presence of some combatants within that population wouldn’t disqualify it
Murder
                                                               i.      Define Elements
                                                             ii.      Killings at Beta Clearly qualify
                                                           iii.      Killings at Alpha clearly qualify. The victims almost surely do not qualify as combatants who could legally be targeted (which would mean that killing them wouldn’t be ‘murder’) – this doesn’t appear to have been an armed conflict, and the victims appear to have been civilians spontaneously protecting themselves from an unlawful attack. Also, killing all 25 as a response to one firing a shot doesn’t seem like legitimate self-defense, plus the CP invaders were committed a crime and took on the risk that they would be fired at.
Extermination
                                                               i.      Define Elements
                                                             ii.      Mass killing of 700 people clearly qualifies
                                                           iii.      Killing of 25 people at Alpha is more borderline. No clear numerical threshold for what constitutes a large enough number.
Persecution
                                                               i.      Define elements
                                                             ii.      When another international crimes is committed for reasons of bias, it counts as persecution. That means that the killings at Alpha and Beta were persecution, with murder/exterminiation as the constitutive acts of persecution.
                                                           iii.      The ethnic cleansing campaign itself was also persecution—depriving fundamental rights on ethnic grounds. (Note: deportation and forcible transfer is also a CAH under the Rome Statute; carrying this out for reasons of ethnic bias is surely persecution.)
Was Genocide Committed?
Definition of genocide
Were there victims as a protected group?
                                                               i.      No biological differences between the three groups, and not immutable; boundaries flexible. But see Rwanda precedents; cultural differences matter, and boundaries were also flexible in Rwanda.
                                                             ii.      Perpetrators clearly viewed as separate group, and society in general distinguished, so would qualify under subjective approach.
                                                           iii.      “Not X” issue – was group defined here as “non-Capricans”? If so, may not qualify if Stakic rule is adopted (but see contrary approach in Jelisic)
1.       Can’t define group negatively
                                                           iv.      (Note: the rest of the analysis assumes the victims were a protected group)
Did the ethnic cleansing campaign itself amount to genocide?
                                                               i.      It is usually hard to show that mass deportation in and of itself amounts to genocide—even if the act element were satisfied (perhaps under the “serious harm” or “conditions of life” prongs), the mental state element might not be, because seeking to move a group is not the same as destroying it. But deportation may often be part of a genocidal campaign—i.e., when deciding whether murders of Srebrenica men were genocide, it mattered that women and children were deported.
Did the killings at Alpha constitute genocide?
                                                               i.      Act element satisfied – killings
                                                             ii.      Mental state element is harder. Can it be shown beyond a reasonable doubt that attackers sought to destroy the group, as opposed to simply overacting to a show being fired?
                                                           iii.      Did the 25 men represent a substantial part of the group? Note: men who had the capacity to protect the town might be considered particularly important individuals, especially given that the rest were deported.
                                                           iv.      Killings geographically confined to one village—very small percentage of Librons as a whole—but this doesn’t necessarily mean it’s not genocide (see, e.g., Jelisic)
Did the killings at Beta constitute genocide?
                                                               i.      Re: act element and geographical confinement, see above
                                                             ii.      Mental state is easier case to make than with Alpha. Larger number of people targeted—more likely to be “substantial part,” and killing of families in their homes (wildly disproportionate response to firecrackers) seems more likely to be motivated by intent to destroy, especially when combined with deportation of the first 250 people.
                                                           iii.      Counter-argument: attackers didn’t separate by ethnicity; some all-Caprican households were also destroyed. But the village was known to be mostly Tauron, so this needs not be interpreted to mean no genocidal intent.
Modes of Liability
Expulsion campaign as a whole
                                                               i.      Facts make clear that Aramak had position of authority and both ordered and planned the campaign as a whole—the primary modes of liability are straightforward, so you need not consider secondary modes.
Killings at Alpha and Beta—ordering and planning
                                                               i.      Aramak’s orders (and what we know about his plans) were more mixed when it comes to killings. He affirmatively directed troops not to commit unnecessary violence, but he authorized violent reprisals against non-Capricans who “raised their hand” against Capricans. The killings at both Alpha and Beta were triggered by non-Caprican resistance, but they arguably went well beyond the scope of the reprisals he authorized, especially at Beta (unless there was some evidence that his audience understood his language to authorize widespread violence). I think it would be hard to prove ordering or planning beyond a reasonable doubt with respect to either incident, except perhaps with respect to the murders of the actual individuals who fired the shots/threw the firecrackers.
Killings at Alpha and Beta – aiding and abetting
                                                               i.      Aramak arranged access to weapons and otherwise made it possible for these killings to be committed. The tricky issue is the mental state: did he act “in the knowledge of the intention of the group to commit the crime (Article 25(d)(ii), aiding/abetting a group crime) or “for the purpose of facilitating the commission” of the killings (Article 25(c), general aiding and abetting)?
Command Responsibility for killings at Alpha and Beta
                                                               i.      Requisite superior-subordinate relationship existed
                                                             ii.      Aramak probably was “effectively acting as a military commander,” meaning the “knew or should have known” mental state applies under Article 28(a)—no specific notice required
                                                           iii.      Failure to prevent: Aramak appears to have anticipated the possibility of violence and it was likely reasonably foreseeable as an objective matter. Aramak could argue that his orders to avoid violence were a reasonable effort at prevention, so he committed no culpable omission, or that he could not foresee that troops would violate those orders; prosecution would argue he needed to put more effective measures in place.
                                                           iv.      Failure to punish: Aramak had actual knowledge of both sets of killings after the fact—there was an “intentional outcry.” He did not even order investigation at Alpha—culpable omission. At Beta, he would argue that he did investigate and fired the commander; prosecution would argue that this non-criminal punishment of a single person wasn’t enough to satisfy the duty to punish.
Joint Criminal Enterprise Liability for Alpha/Beta Killings
                                                               i.      Define requirements for JCE
                                                             ii.      Here, group of persons acted with common criminal purpose (mass expulsion campaign)
                                                           iii.      Aramak acted to further that purpose through orders, providing weapons, etc.
                                                           iv.      Assuming prosecution can’t prove planning/ordering liability for the killings, it probably also can’t prove killings were part of the common criminal purpose. So the key question is JCE 3 liability—prosecution would argue that killings were a predictable outcome of carrying out the mass expulsion and that Aramak in fact foresaw its possibility.
                                                             v.      Note uncertain status of the JCE 3 theory at the ICC, and note that Article 25(d) does not actually refer to any foreseeability requirement.
 
 
 
ISSUE SPOTTER BREAK-DOWN
 
Substantive ICL Review Exercise
 
TWO MAIN STEPS TO THESE CASES
First decide whether crimes were committed by anyone (not just the D). Normally, a tribunal will look first to actions of principle perpetrators and decide whether th

diction of the court
Enforced disappearance of persons
The Crime of apartheid
Other inhuman acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
ALSO: must be multiple and related to a policy
Could be as implicit as gov’t condoning or not punishing act
Not part of elements related to individual’s crime – first look to see the background context and if it satisfies the contextual elements for crime against humanity and THEN look at the individual elements of the particular crime, e.g., rape.
The State policy must support the broader attack against the civilian population but doesn’t need to have dictated the specific crime NOR the type of crime.
E.g. members of militia who committed rape could be charged with crime against humanity even if Prosecutor cannot prove a conscious encouragement by the State, as long as the State is behind the wider, linked attack against the civilian population.
Murder
Village of Alpha – 25 men killed
Maybe – usually, murder must be on a large scale – big numbers – acts with the intention of bringing about the death of a large number of victims. Must involve a mass killing.
Village of Beta – 275 homes burned and 700 people killed
Yes, involves a mass killing.
Extermination – See Prosecutor v. Krstic (ICTR)
Village of Alpha – 25 men killed
Village of Beta – 275 homes burned and 700 people killed
Under Rome Statute, Article 25, 3(b) à Individual criminal responsibility exists where person “orders, solicits or induces the commission of such a crime which in fact occurs or is attempted”
Under Rome Statute, Article 28 [Responsibility of Commanders and Other Superiors] à Article 28(a)(i). 
Persecution (Article 7, 1(h)) – in Prosecutor v. Kuspreskic, Court held Definition of persecution = the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5. Note: acts of persecution must be evaluated not in isolation, but based on context.
Village of Alpha – 25 men killed
Yes
In Prosecutor v. Kuspreskic, the Court Rejects notion that persecution must be linked to crimes found elsewhere in the Statute of the International Tribunal.
Village of Beta – 275 homes burned and 700 people killed
Yes.
In Prosecutor v. Kuspreskic, the Court Rejects notion that persecution must be linked to crimes found elsewhere in the Statute of the International Tribunal.
ID what crimes were committed with respect to the killing in Alpha, Beta, and the expulsion campaign as a whole & which crimes/incidents Aramak is likely to be held individually responsible for
Refer to Articles 25 and 28 of Rome Statute concerning modes of liability
 
 
 
 
IF WAR CRIME
Elements Common to ALL War Crimes (Contextual Elements of War Crimes)
Armed conflict? (if no armed conflict, there’s no war crime)
Nexus to Armed conflict? (Crime must be connected to the armed conflict – just because there’s a war happening all around you and you decide to shoot your neighbor, that’s just an ordinary domestic crime)
International or non-international? (Not necessary for a war crime but still a necessary question – determines what body of war crimes law applies. There are substantial differences in the legal regimes that apply. There are certain acts that are war crimes if committed in international armed conflict; whereas there are some that would be so in either context)
Two Categories of War Crimes
Grave Breaches of the Geneva Conventions
Serious Violations of the Laws and Customs of War (including Hague law, Geneva protocols, and customary international law)
Three Central Principles of Hague law
Necessity: military object plus clear military advantages
Distinction: no targeting of cilivians or use of weapons/tactics
Proportionality: foreseeable civilian damage must be proportional to the military advantage sought
Persons Protected by the Geneva Conventions
GC 1 & 2: The sick, wounded, and medical personnel at land and at sea
GC 3: Prisoners of War (combatant detainees)
GC 4: Civilians
Combatants and the Combatant’s Privilege
Lawful combatants have the legal right to take up arms, and, even if captures, cannot be punished for doing so.